R v Birmingham City Council, ex parte Equal Opportunities Commission

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date14 Oct 1992
Judgment citation (vLex)[1988] EWCA Civ J0513-6
Docket Number88/0449

[1988] EWCA Civ J0513-6






(Mr. Justice McCullough)

Royal Courts of Justice


Lord Justice Dillon

Lord Justice Neill


Lord Justice Woolf


In The Matter of an Application for Judicial Review

The Queen
Birmingham City Council
Appellant (Respondent)
Ex Parte The Equal Opportunities Commission
Respondent (Applicant)

MR. M. J. BELOFF, Q.C. and MR. R. McMANUS (instructed by Messrs Sharpe Pritchard; London agents for G.W.T. Pitt, Esq., Birmingham) appeared on behalf of the Appellant/Respondent.

MR. D. PANNICK (instructed by J.A. Lakin, Esq., Manchester) appeared on behalf of the Respondent/Applicant.


This is an appeal from a judgment of McCullough J. given on 14th October 1987. McCullough J., on an application for judicial review by the Equal Opportunities Commission, came to the conclusion that the current arrangements made by Birmingham City Council for the provision of selective secondary education are unlawful pursuant to section 23 of the Sex Discrimination Act 1975 read together with section 8 of the Education Act 1944 (as amended) and he granted the Equal Opportunities Commission a declaration to that effect. However, McCullough J. as a matter of discretion refused to make an order of mandamus.


The issues raised by the appeal are not only important for education within the City of Birmingham but also to education and Education Authorities throughout the country since if the arguments as to the interpretation of the relevant statutory provisions advanced by the Equal Opportunities Commission and accepted by McCullough J. are correct, it will mean that inevitably other Education Authorities will, from time to time, be guilty of similar unlawful discrimination and when this occurs the Education Authorities will be liable not only to be subject to applications for judicial review but also actions for damages to which they will have no defence even though the unlawful situation could be brought about by circumstances over which they have no direct control. Furthermore, in order to rectify an unlawful situation a local education authority might be forced to take action which reduced the total facilities available and which instead of improving the position made it worse from the point of view of those who had complained about the existing situation to the Equal Opportunities Commission. If this is the state of the law it is to be deeply regretted. However, in my view, the proper interpretation and application of the relevant statutory provisions does not have this effect.


The reason for the application for judicial review is that in Birmingham there are eight grammar schools, but five of these are single-sex boys' schools admitting a total of 542 boys and only three are girls' schools admitting 360 girls. The reason for the difference between the number of boys schools and girls schools is mainly historic. With the exception of one of those schools (Sutton Coldfield County Grammar School for Girls, which is a County school) all the grammar schools are of ancient foundation and voluntary schools for the purposes of section 9 of the Education Act 1944. All the pupils at these grammar schools are selected on the basis of the results of examinations taken, in the case of all the schools apart from two, at the age of 11+ and, in the case of two schools, at the age of 12+. At the age of 12+ the two schools, one boys' and one girls', offer an equal number of places and so the disparity in the availability of places between boys and girls is confined to those seeking entry to grammar schools on the basis of their performance in the 11+ exam. The majority of children attend non-selective schools in Birmingham and selective entry schools represent only 5% of the total available secondary school places for children of the age of 11.


As the numbers of boys and girls starting secondary education each year is roughly equal it is not surprising that the evidence clearly establishes that the minimum mark required in order to obtain entry to a grammar school in the case of a girl is appreciably higher than that in the case of a boy and so the girls chances of obtaining entry are appreciably less than those of a boy. It is this difference in treatment which is alleged by the Equal Opportunities Commission to amount to unlawful sex discrimination.


It is not in dispute that the present situation of inequality has come about notwithstanding the fact that the Council has never had a policy of discriminating between the sexes. It exists for the historical reasons already indicated and in the words of Mr. Beloff, who appeared on behalf of the Council, can be described as an inherited situation.


In his affidavit on behalf of the Council Mr. Crawford, the Director of Education, deposes to the fact that the Council shares the Commission's desire to work towards the elimination of sex discrimination and the promotion of equality of opportunity between men and women generally and that the present situation "has developed in a manner and for reasons which have nothing to do with any intention to discriminate on grounds of sex". Mr. Crawford also gives evidence to the effect that the Council does not accept that the quality of education provided at a selective as opposed to a non-selective school is of such a difference as to form the basis of a complaint of unlawful discrimination.


In order to come to a decision as to whether McCullough J's decision is correct two questions have to be answered. The first question is whether the disparity in the number of places available for boys and girls amounts to sex discrimination? The second question is whether if there was sex discrimination it was sex discrimination by the Council made unlawful by section 23 of the Sex Discrimination Act 1975?


The first question: Is there Sex Discrimination?


The answer to this question depends upon the terms of section 1 of the Sex Discrimination Act 1975. That section, so far as relevant, provides:

"(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if—

  • (a) on the ground of her sex he treats her less favourably than he treats or would treat a man."


Mr. Beloff relies on two arguments for saying there was no discrimination within section 1. He correctly submits that because less places are available for girls and they are therefore being treated differently to boys does not necessarily mean that the girls are being treated less favourably than the boys. He points out that there is no evidence to indicate that the places which are available for the girls at non-selective schools are in any way inferior to those available to boys at selective schools. He also submits, and this is not disputed by Mr. Pannick on behalf of the Commission, that it is for the Commission to establish objectively as a matter of fact that the girls are being treated less favourably than the boys and the Commission has not placed before the court any evidence to prove that this is the situation.


Like McCullough J. I reject this first argument. Although opinions can differ as to the respective merits of comprehensive and selective education there is no doubt on the agreed facts that the shortage of places for girls at selective schools means that those girls who were not accepted for education at a grammar school because their marks were below the required standard but would have been accepted on their marks if they had been boys are being deprived of the option of going to a selective school as they wish to do. In this way they are being treated less favourably than the boys who have no more marks but are accepted for entry for selective schools. Therefore, on this basis, it can be said that there is discrimination under section 1 of the 1975 Act without going into the respective merits of comprehensive as opposed to selective education. To have less chance of a choice of educational systems constitutes less favourable treatment.


Mr. Beloff's second argument was that before the Council can be said to discriminate it must have intended to do so. He submits the phrase "on the ground of sex" imports the requirement of a concept of a deliberate intent to discriminate while here all that has happened is that the Council has failed to remove an inherited imbalance in the provision of selective education for boys and girls.


While I accept that there was no evidence of any intention on the part of the Council to discriminate and such evidence as there is indicates the intention not to discriminate, I am quite satisfied that there can be discrimination within the meaning of section 1 of the 1975 Act without any intention to discriminate. All that needs to be established is that a woman has been treated less favourably than a man on the grounds (i.e., because) she is a woman. There is no requirement in order for there to be discrimination that the discriminator should have intended or wanted a woman to be treated less favourably because she is a woman. Contrary to Mr. Beloff's submission, in so far as section 66(3) assists, it supports the conclusion to which McCullough J. came on this issue.


In this case, accepting that the Council would have preferred the girls not to be at a disadvantage in obtaining places at a selective school, they are in fact at a disadvantage because they are girls when compared to boys and this is all that is required in order to establish discrimination within the terms of section 1(a) of the 1975 Act.


The second question: Was the discrimination...

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